Court Refuses To Dismiss Righthaven Lawsuit Just Because Righthaven Bought The Copyright After Infringement Happened

from the trolling-allowed dept

We've noted a variety of creative defenses being tested in response to lawsuits from Righthaven. One attempt was to claim that Righthaven had no standing, because it did not hold the copyright when the actual infringement occurred. That's because the way Righthaven works is it searches for copies of parts of articles from the Las Vegas Review-Journal (or the new newspapers who just signed up) and only then buys the copyright in question for the purpose of suing.

While it may have been a novel theory to say that you can't sue in such situations, there was little legal basis for that claim, and a judge has rejected it as a reason to dismiss. The judge did say that the issue could be explored further at trial, but the defendant in this case clearly read the writing on the wall and quickly settled the case, realizing that it's cheaper to settle than to fight. That, of course, is exactly what Righthaven's whole business model is predicated on.

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Out of curiosity, how much does it cost to buy the copyrights for those articles?

No one knows. The terms of the relationship between LVRJ and Righthaven are kept secret. But LVRJ's parent company funded Righthaven, so I'm guessing the terms are basically "x% of whatever you can squeeze out of everyone."

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It would make an interesting defence, to argue that statutory damages (that's what they are claiming, right?) should be capped to something really tiny because of the value of the copyrights. Such common sense isn't very common in the legal system, though.

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The specifics of the deal between Righthaven and LVRJ are ompletely irrelevant, and they would not need to disclose that information. All that matters is that Righthaven was assigned the rights, which they were, and that they can demonstrate that, which they can.

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> The specifics of the deal between Righthaven and
> LVRJ are ompletely irrelevant, and they would not
> need to disclose that information.

Relevancy is an evidentiary standard used at trial, not at discovery. The federal rules provide wide latitude for both parties in discovery for civil suits. It's not uncommon for things like a party's sexual history to be requested (and granted) for something as simple and seemingly unconnected as a breach of contract case.

Just to help clarify, can someone who knows about the details of this stuff explain *why* you're able to sue someone for infringing on a copyright you don't have until after the infringment happens? Because to me that sounds like one of those can o' worms things, where tons on unintentional infringement could happen prior to a copyright creation, and then everybody gets sued for being incapable of predicting the future...

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"Just to help clarify, can someone who knows about the details of this stuff explain *why* you're able to sue someone for infringing on a copyright you don't have until after the infringment happens? Because to me that sounds like one of those can o' worms things, where tons on unintentional infringement could happen prior to a copyright creation, and then everybody gets sued for being incapable of predicting the future..."

In a nutshell, its because of the 1976 copyright act, which made ANYTHING copyrighted AUTOMATICALLY upon creation. So, you write an article or book, it is copyrighted RIGHT NOW. Before this, you would have to register a work specifically to get a copyright. The other wrinkle in this, is that, technically, you still need to register the work (even tho its "covered" automatically at time of creation) in order to get more/higher damages if you need to sue. If you dont, you can still sue, but the damages are far less than if you hold an actual, registered copyright.

Righthaven is trying to have it both ways. They are trying to use the "automatic copyright" as a basis for suing (which, technically, they can) but then ALSO trying to game the copyright system by filing a registration of the copyright AFTER the alleged infringement, in order to get the higher damages. I cant see this sort of thing holding up in court. It wont prevent them from suing, but it damn well SHOULD prevent them from getting the multiple damages that the registration would allow, if it had been done properly PRIOR to reported infringement.

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Righthaven is trying to have it both ways. They are trying to use the "automatic copyright" as a basis for suing (which, technically, they can) but then ALSO trying to game the copyright system by filing a registration of the copyright AFTER the alleged infringement, in order to get the higher damages.

That doesn't sound right. Where did you see that Righthaven is registering the copyright AFTER the infringement?

Even if you're right, you have to keep in mind that there is a grace period from the date of publication to register and have it work retroactively to the date of publication. Perhaps Righthaven is simply registering in this grace period.

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"That doesn't sound right. Where did you see that Righthaven is registering the copyright AFTER the infringement?"

Uh...from this:

"That's because the way Righthaven works is it searches for copies of parts of articles from the Las Vegas Review-Journal (or the new newspapers who just signed up) and only then buys the copyright in question for the purpose of suing."

On the other hand, you may be right about the grace period. would just depend on the timing. I still think it makes a shady semi-abuse of copyright law tho.

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Gotcha. There's a difference between registering a copyright and buying a copyright from someone else. When Righthaven buys the copyright, it might already be registered, or it might not be. Either way, the rights are transferred, whatever those rights might be.

The registration is what's important for being able to go for statutory damages, but like I said, there's a grace period for registering. They could register it after the infringement and still have statutory damages on the table as long as they register it during the grace period.

It's not technically an abuse of copyright law to do what they're doing. Personally, I don't fault them for what they're doing, but to each his own.

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I'm not sure why my having an honest opinion makes me reprehensible. I value peoples' rights. I think it's reprehensible for people to infringe on other peoples' rights. I am not opposed to people enforcing their rights when other people infringe on those rights. What's so reprehensible about that?

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While "technically" this lawsuit is about infringing on copyrights, what it actually amounts to is extortion via the law and I think you're smart enough to know that.

What makes it reprehensible is that you choose to ignore the reality of the situation in favor of what is technically correct under the current law. People with your attitude have always had an attitude that amounts to "a bunch of people decided something is acceptable, therefore it is acceptable."

Attitudes like that are responsible for slavery, genocide, political imprisonment, and the vast majority of societies ills. There will always be terrible people who want to do terrible things and, to our great misfortune, there will always be people like you to help them along. Why don't you try growing a conscience and asking yourself if what these people are doing is right. Not just legal or acceptable in the current context of society ... ask yourself if you think their actions are beneficial to mankind both now and in the future.

You may think that sounds a little lofty for something as simple as a copyright matter; I think it's just a little more evolved.

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Oh, well never mind about the being smart enough to understand then. Also, if you really and honestly think that this case is about a victim and an aggressor then I'm not really sure what to say to you. Neither the LVRJ or Rightshaven bothered to notify the defendant that they didn't want the material reposted and copyright is hardly a well understood and widely accepted concept.

You can't possibly be arguing that what the defendant did is generally accepted as morally wrong (possibly the only way she would have inherently understood that there is a high likelihood of consequences for reposting content). And I doubt you could successfully convince anyone that her actions where malicious. So whats left? A company that buys the rights to content only after they know that there is an opportunity to extort someone for money. I only see 1 victim here and it isn't Rightshaven.

Actually, I see 2 victims, the defendant, and you. You're the victim of a terrible education system and a culture that increasingly promotes the ideals of profit, ownership, and apathy.

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I'm sorry if it seems personal, but I recognize your behavior as part of a larger problem with society. People who have been taught, incorrectly, that things can be owned, that a corporations rights can supersede those of an individual, and that the law is always correct, even if it's always changing.

You claim I don't know you and you are correct, I can only know what you've written. You have displayed an opinion (in these posts and others) which seems devoid of empathy, understanding, and critical thinking skills. You accept that something is legal and therefore is right. When that is challenged, you claim that people can defend their "rights." When that is challenged you stop responding in a meaningful way. And through all of this, you fail to grasp on any level the basic "wrongness" of a company which buys copyrights, registers them after the fact, and then sues people as a business model. You even have the audacity to refer to them as victims, as though they had been beaten, raped, or murdered ... and you try to call me out for using more direct language (genocide, etc.)

I'm going to wrap up with this (feel free to respond but I'm done so you can have the last word if you want.) I don't know you, I only know what you've written and reading what you've written fills me with mixed emotions. One part of me wants to have a meaningful discussion to see if we can come to some agreement. The other part, well, the other part sees you as someone who is so convinced that they are morally, intellectually, and socially superior that you can't imagine other people or their opinions matter. That part of me wonders how long before people with your attitude manage to destroy any chance humanity has of evolving.

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I don't recall ever saying that since something is legal that necessarily means it's right. Believe it or not, I'm not as intellectually void as you seem to think I am. You seem like a bright guy. We just don't see eye-to-eye. So what? I do think it's pretty funny you think people like me are destroying humanity. LOL! That's gonna make me smile all weekend. Have a great holiday.

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One last thought... You know the US Copyright Group's campaign against illegal file sharing? Well, I did a bunch of legal research and came up with some great arguments that are potentially very helpful to the defendants. I briefed it all and shared it with the EFF. They thanked me and told me that my work had been forwarded to all of the attorneys they've put together to help the defendants. What did you do to help? I'm guessing you just sat around thinking about how great you are. I actually did something.

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Well, I did a bunch of legal research and came up with some great arguments that are potentially very helpful to the defendants. I briefed it all and shared it with the EFF. They thanked me and told me that my work had been forwarded to all of the attorneys they've put together to help the defendants.

Oh, really? How about sharing that with rest of us here? If what you claim is true, I suspect the EFF was just being polite to you.

Who the hell reads their rags anyway? Idiots? You betcha!

What kind of journalistic douchebaggery does the LVJR represent? Who cares? I'd never read their stupid rag, or any copy of it, legitimate or otherwise. Bunch of lame-ass punks trying a new twist on the old extortion racket. Here's my take on lawsuits in general - sue me.....get bullet between eyes....case moot. Works like a charm. No appeals, either.

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Honestly, I think that in order to file a lawsuit such as this, you should have to meet the following challenges:

Upon discovering infringement:
- You have to file a formal take-down notice to prevent accidental infringement from ever being an issue.
- If the infringing party takes the material down within an acceptable time frame, the scenario is over. The right to sue is not granted.
- If the infringing party fails to respond to the take-down notice, you have met the criteria to move forward.

It doesn't cost much to defend, unless you hire a *lawyer*.

There seems none among the victims of this racket who have enough grit to take the case to a jury and point out the obvious *racketeering*. Doesn't matter even if The Facts and The Law are against you, just state your case to a jury and rely on common sense and fair play -- which *most* people have, unless they've been *educated*. Some business owners they are, to just pay off when leaned on. Is that independence and entreprenurial spirit? Or is it and MBA and Excel? -- I'm sure they're getting "legal" advice, but that comes from the same bunch of vultures as the plaintiff is using, who profit from controversies, with a "good lawyer, bad lawyer" game.

@AC: I come from the *real* America, where odds don't matter; principle does.

And I've personally embarrassed cops, lawyers, and judges. All you need is the truth. You aren't alone in the court when you've a jury, just need to convince them that you are indeed Average Joe and your fight is theirs.

But apparently you *are* such a coward that you can't even uphold a handle on a website.

Truth is what you believe in. Or rather, what you can convince the judge and the jury to believe in. Don't forget that to some people, Christianity is the truth, while to other, Hinduism is. The problem is that "truth" is not a boolean value. It is not either "True" or "False". It depends on interpretation.

What I am saying is that, under the current rules, the systems gives you WAY too much room for interpretation. And that can be used to screw you (or anyone), even if the truth is apparently on your side.

Take your invasion of Iraq. A lot of important people claimed that there were weapons of mass destruction there.

Where are those weapons? You doomed thousands of troops and civilians for, basically, nothing, just because some dolt managed to convince the "judge" that invading Iraq was a good idea.

"But apparently you *are* such a coward that you can't even uphold a handle on a website."

In the real _world_, I have the option to remain anonymous. I use it more because I am too lazy to create an account and log in than because of cowardice.

You used that option too, to some extent. You don't post with your real name. You use a random alias which, effectively, makes you anonymous...and a coward (to a lesser extent than me, but a coward still).

"Righthaven's whole business model is predicated on."

Wrong again, Mike. Got a citation for that?

If not, you should do more research or else redact that statement because it may be false. Righthaven is an awesome company that innovates regularly. In fact, they just hired twenty more employees to keep up with the boom in business.

I looked at a couple of the complaints that are posted on Scribd, and it is true that Righthaven is acquiring the copyrights after the infringement has occurred and then registering the copyright. They are doing so in within the grace period, so statutory damages are on the table. At least in the couple of cases I looked at.

I also did some case law research on the issue of Righthaven having standing to sue for the infringements that happened before they were assigned the copyrights. The controlling case law in Nevada where these suits are being filed is perfectly clear--they have the right.

Filing a motion to dismiss on the standing issue was a complete waste of time. Several others have tried the exact same thing, and all were denied. I'm not sure why this defendant thought it would be any different.

average_joe

I'm not sure why my having an honest opinion makes me reprehensible.

That depends on the opinion. An opinion can be both honest and objectionable.

I value peoples' rights. I think it's reprehensible for people to infringe on other peoples' rights. I am not opposed to people enforcing their rights when other people infringe on those rights. What's so reprehensible about that?

There's a difference between a legal right and a moral right. For example, at one time people had the legal right to own slaves. Still, that didn't make it morally right. History is replete with such examples.

In the case at hand here, some people believe that copyrights and/or patents are morally wrong. Hence, they find enforcing and defending them to be wrong as well.

Re: average_joe

I'm sure some people find copyrights and/or patents to be morally wrong, but I don't think any sort of comparison to slavery is appropriate. It's a little too convenient that these same people just want to download stuff for free, and they don't care about the rights holders. I don't buy it. If other people buy it, that's their choice to make. I'm not out to convince people that I'm right.

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I'm sure some people find copyrights and/or patents to be morally wrong, but I don't think any sort of comparison to slavery is appropriate.

Well, there was none made beyond the fact that they were both legal but considered by some people to immoral. But if you want, then okay: slavery, copyrights and patents are similar in that they all take freedoms away.

There, better now?

It's a little too convenient that these same people just want to download stuff for free, and they don't care about the rights holders.

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Not to mention, if he doesn't care, then why continue to post over and over again about how you're right and everyone else is wrong.

Also, high fives on understanding the slavery comparison.

And lastly, to average_joe, you admonish me for making personal attacks but here you are ranting about how "these same people just want to download stuff for free". I find that insulting and personal, you don't know me.

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Bringing up slavery and genocide and the like in the middle of an IP debate always cracks me up. Sure, a kid sitting at his computer downloading mp3s is just like MLK writing from the Birmingham jail. Give me a break.